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Juvenile's records not protected by counselor/client privilege

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The Howard Superior Court erred in finding that the counselor/client privilege prevented the admission of a son’s counseling records during a custody modification hearing, the Indiana Court of Appeals ruled today.

The trial court ruled that W.B.’s counseling records, which included his counselor’s notes, summaries, risk assessments, and status reports, were privileged and that no exception to the counselor/client privilege applied.

W.B. was adjudicated a delinquent after he admitted to a sexual battery charge against his sister A.B. A.B. and W.B. lived with their mother who had physical custody of the children after the mother and father divorced. When the father learned W.B. had touched his sister inappropriately, he reported it to Child Protective Services and A.B. moved in with her maternal grandparents due to a no-contact order between the siblings.

W.B. went to counseling, in which his social worker found he remained at a high risk to re-offend. W.B. was eventually discharged from treatment, his probation ended, and the no-contact order ended. A.B. moved back in to live with her mother and brother. That’s when the father petitioned for modification of custody seeking physical custody of A.B. due to the threat of potential molestations by W.B.

The trial court denied father’s petition to modify custody, finding A.B. is older and in school, and while the charges are substantial, they aren’t enough to modify custody.

The counselor/client privilege is set forth in Indiana Code Section 25-23.6-6-1, but it is subject to exceptions. I.C. Section 31-32-11-1 abrogates the privilege in proceedings resulting from reports of child abuse.

“The statute has been applied for the most part in criminal prosecutions,” Judge Nancy Vaidik wrote in J.B. v. E.B. No.34A04-1002-DR-110. “But Section 31-32-11-1 is worded broadly and abrogates the enumerated privileges in ‘any judicial proceeding’ resulting from a report of child abuse or ‘relating to the subject matter of the report.’”   

A.B. reported that her brother touched her inappropriately, which led to W.B.’s delinquency proceedings and the father’s petition to modify custody. He wants to prevent further abuse of A.B., and the privileged information concerns the brother’s potential to re-offend.

“In line with the foregoing, we conclude that the instant case is a proceeding within the purview of Section 31-32-11-1 and in which the counselor/client privilege does not apply,” she wrote. “We therefore find the trial court erred in excluding W.B.’s counseling records on the basis of privilege. We also cannot say the error was harmless, given the content of W.B.’s counseling records and the limited grounds on which the trial court based its ruling.”

The case was remanded for further proceedings.
 

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

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  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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